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BEGHE, J., concurring: My impression is that it was due to
mere inadvertence, a ministerial omission, that respondent’s
employees charged with the responsibilities of preparing and
sending the notice of deficiency failed to stamp the date for
filing the petition at the appropriate space provided on the
notice form; it was not with the intention of flouting the
expressed will of Congress. After all, the Commissioner has
redesigned the statutory notice form so that it provides a space
for stamping the date by which the petition must be filed; the
vast majority of the statutory notices that are issued bear the
requisite date stamp, and nothing we say or do in the majority
opinion encourages the Commissioner to be less than diligent in
his continuing efforts to achieve 100-percent compliance with the
Congressional mandate.
It’s also my impression, consistent with the majority’s
inference that there was no detrimental reliance or confusion on
petitioner’s part, that he decided to file the petition more than
90 days after issuance of the notice with a view to testing its
validity. Since petitioner, a member of the bar, chose not to
testify in the hearing on the cross-motions, I’m comfortable in
making this inference. See Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. on other grounds
162 F.2d 513 (10th Cir. 1947).
I agree with the majority and Judges Foley and Swift that
the statute, despite its imperative mood and lack of a savings
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